From American RadioWorks®, the documentary project of Minnesota Public Radio and NPR NewsSM. On the Internet at www.americanradioworks.org. Part of the story Justice on Trial

July 2002

Imposing Justice from the Hague

On the Internet at: http://www.americanradioworks.org/features/justiceontrial/index.html

The close of the Cold War saw a wave of new conflicts around the globe. These were not the battles of nation-states like in the First and Second World Wars, but civil conflicts and violence among ethnic groups. In Europe, the collapse of Yugoslavia quickly descended into slaughter. Civilian massacres, concentration camps and the newly-termed "ethnic cleansing" evoked the Nazi era. The United Nations looked to the historic trials at Nuremberg for a solution. In 1993, the UN created a tribunal (the International Criminal Tribunal for the former Yugoslavia -ICTY ) to prosecute genocide and other crimes against humanity in the Balkans. This new court was based in The Hague, far from the killing fields in the former Yugoslavia. At this distance, officials hoped the court would be seen as fair, even to those being prosecuted, and that justice would overcome cycles of violence in which neighbor killed neighbor.

Showdown in Courtroom Two

The scene: Courtroom Two at the United Nations war crimes tribunal at The Hague. Three men face each other. The witness is a small, gray-haired man named Sakib Ahmic. He is a Bosnian Muslim. Among the accused are two neatly-dressed brothers in their 30s named Zoran and Mirjan Kupreskic. They are ethnic Croats. Between the men stands American prosecutor Albert Moskowitz. It is the end of an exhausting day in the opening of a legal process that will run three years.

Moskowitz asks witness Ahmic whether he can identify the two brothers Zoran and Mirjan Kupreskic. Ahmic identifies both men.

"Were these the two men who were in your house on April 16, 1993 while your family was killed before your eyes," asks the prosecutor.

The elderly witness stands and points to the accused men twenty-five feet across the courtroom. His hand quivers.

"Yes," he says.

The trial judge asks Sakib Ahmic to take his seat.

At the defense table, Mirjan Kupreskic is devastated.

"All along I thought he might say something like we resembled the attackers," he recalls. "(But) when he pointed to us and said those are the killers of my children, it's like my legs were cut from under me. I couldn't believe it."

From the trial's opening in 1998, Mirjan and Zoran Kupreskic denied they were involved in the murder of Sakib Ahmic's family.

"I was very good friends with Sakib's son Nasir," says Mirjan. "And when Nasir's son was born, he came over to our place with drinks to honor his new child. Can you imagine that three months later they're dead and I'm accused of their murder?"

Prosecutor Albert Moskowitz, who came to The Hague from the U.S. Justice Department, was satisfied with Sakib Ahmic's testimony.

"It was a very emotional and difficult moment for Sakib to look at the murderers of his son, at the murders of his grandkid, Seho, he was shot to death in his crib, and look them in the eye and say you're the people who did this. And Sakib really believes this," says Moskowitz.

Many survivors who testify in The Hague do so in secret to protect their safety when they return home. But Sakib Ahmic chose to speak in open session, explaining that he wanted the world to hear his story.

"Who should I fear to tell the truth?" Ahmic told the court. "I'm not afraid of anyone anymore. And I shall never be afraid of anyone any more. All those who did that (participated in the attack)…they should fear me."

The International Criminal Tribunal for the Former Yugoslavia (ICTY) was created to make moments like this possible. The court is meant to be a place where victims of a war can seek justice when the courts in their own country fail to prosecute war crimes.

Thousands of witnesses have testified since the ICTY was created in 1993. The ICTY was the first international war crimes court established since Nazi and Japanese leaders were tried at Nuremberg and Tokyo after the Second World War. But unlike those courts, The Hague tribunal was established in the midst of war. The UN hoped that punishing individuals for war crimes would deter more atrocities. Once the fighting was over, the court was meant to promote reconciliation and the rule of law.

Graham Blewitt, the ICTY's deputy prosecutor, was prosecuting former Nazis in his native Australia when he joined the tribunal soon after it was established.

"All the lawyers and prosecutors here have closely researched the various Nuremberg judgments and incorporate them into their own proceedings," says Blewitt.

Blewitt has seen the court grow from a staff of five to nearly 1,000 people and annual budget of around $100 million. In 1994, the UN created a second war crimes court for Rwanda.

Despite the vastly improved resources, the tribunals have only convicted several dozen war criminals. That leaves thousands of suspects walking free in the Balkans. Are the prosecutions of a select group of suspects enough to fulfill the tribunal's ambitious mandate? Can any court deter new violence and foster reconciliation?

Early Morning Attack

If Nuremberg was tarnished by the stain of "victor's justice," the ICTY set out to show that it could prosecute not just Serbian forces for war crimes in Bosnia. One of the first and most notorious cases for the court was the massacre that Sakib Ahmic witnessed in 1993.

In the early morning hours of April 16, 1993, heavily armed men in camouflage attacked Ahmici, a tiny village in the rolling farmland of central Bosnia where Muslims and Croats lived. The men did not attack the whole village, only homes of Muslims. Within hours, some 100 civilians were slaughtered  men, women, children and the elderly. Numerous witnesses would later testify that the attacking soldiers wore the insignia of the Bosnian Croat army, known by its acronym HVO.

British UN troops, who were sent to Bosnia to assist aid deliveries but found themselves caught in the middle of internecine battles between Croats and Muslims in central Bosnia, discovered burnt out homes and carbonized bodies inside. Some of the dead were children who appeared to have been burned alive. According to the United Nations, some 20 other villages in the region were attacked on the same day by Bosnian Croat forces. Television crews, escorted to the village by the UN, beamed images of the massacre around the globe, showing that Serbian troops were not the only side committing atrocities in Bosnia.

Ahmici's surviving Muslims, many of whom share the same name as the village, fled Croat-controlled areas soon after the attack. Most survivors went to the nearby city of Zenica, which was controlled by government forces throughout the Bosnian war. They included Sakib Ahmic, who was seriously burned in the rampage but managed to escape through a window.

As the newly formed Hague tribunal decided to move beyond investigations of Serbian forces, ICTY investigators were dispatched to central Bosnia to examine the Muslim-Croat violence. In 1995, prosecutors indicted 15 Bosnian Croats-soldiers, commanders and politicians-for killings and deportations of Muslims. A key element in the indictment was the attack on Ahmici.

Two Strategies: Big Fish and Small Fish

In the indictments of the Bosnian Croats, there were two types of defendants and two types of trials: the higher-ups, who either ordered the attacks, or should have punished the men responsible and the ground level gunmen, who did the killing.

Prosecutor Albert Moskowitz had the job of going after some of the low-level perpetrators at Ahmici: Sakib Ahmic's neighbors.

"This was an eyewitness case," says Moskowitz. " We had to establish that Sakib and the other witnesses could identify in court(that) the people that they're accusing were in their homes five years earlier, shooting and killing everybody."

Zoran and Mirjan Kupreskic maintained their innocence. The defense argued Sakib Ahmic's testimony was unreliable because he did not name the brothers when investigators first spoke to him. Ahmic claimed he was too frightened. The defense also pointed out that bullet casings found at the scene did not match the kind of weapon Sakib described the Kupreskic brothers carrying. Prosecutor Albert Moskowitz grew worried.
All his eyewitnesses were Muslims. No Croats stepped forward to tell what they saw, even though some Croats remained in the village during the attack.

"What we didn't have and what we desperately needed were folks from the other side," Moskowitz recalls. "One of the great frustrations in doing a case like this at the tribunal was that the factions are so polarized that it was virtually impossible to get a person from the Croat community to come in and say, yes, this is what happened. And in any case like this that's what you need for a conviction."

The trial of the Kupreskic brothers would grind on for nearly two years. The parallel cases against senior Bosnian Croat officials responsible for the region around Ahmici were also unfolding. In going after these so-called "big fish," prosecutors used a much different strategy.

Command Responsibility

Payam Akhavan arrived in Ahmici days after the massacre to investigate for the UN High Commissioner for Human Rights. He later worked at the ICTY as a legal adviser. In looking for the "big fish" responsible for troops in the region, Akhavan discovered evidence to support a principal developed at Nuremberg: command responsibility.

"When you're dealing with military commanders and leaders, it's not the particular acts but it's the criminal design or plan," says Akhavan.

The concept of command responsibility allows prosecutors to charge officers for the crimes of their subordinates, even if there is no direct evidence that the commanders ordered killings or other illegal acts. One important element for prosecutors was establishing a pattern of crimes that took place over a significant period of time.

"If you're a commander in effective control and your subordinates, over several weeks or several months, are committing these massive military operations involving atrocities, it is inconceivable that, unless you're a purely symbolic commander, that you have not ordered or instigated these crimes," says Akhavan.

Within days of the attack on Ahmici, villagers told Akhavan and other investigators that the attacking force of about 100 soldiers wore the insignia of the HVO, the Bosnian Croat army. So Akhavan paid a visit to the regional HVO colonel, a man named Tihomir Blaksic.

Akhavan recalls: "I repeatedly asked him, 'Are you the commander of HVO forces in the region?' To which he answered yes. 'Are you in control of this area?' To which he answered yes. And I said, 'How could a company size group of soldiers, a hundred to hundred and fifty soldiers engage is a several hour-long assault on a village, involving several hundred casualties, involving mortars and machine guns and so on. How could you not know about it?'"

Blaksic's office was just two miles from Ahmici, but the commander claimed he had no idea who carried out the attack. With no physical evidence to tie Blaskic to the massacre, prosecutors largely relied on the doctrine of command authority to prosecute the Bosnian Croat commander. Investigator Payam Akhavan's interview turned out to be important evidence for the prosecution.

"I did mention that they would be held responsible if they did not investigate these atrocities and bring those responsible to justice," says Akhavan.

So while Akhavan's interview did not prove that Blaskic ordered the attack, it established that the colonel knew about the atrocities shortly afterward and had time to follow up.

"Inadvertently we stumbled on a very convenient means of putting commanders on notice and avoiding any pretext on their part of saying that they were somehow unaware of what their subordinates were doing," says Akhavan.

Command responsibility, or "superior authority" as it applies to civilian leaders, is at the heart of many ICTY prosecutions, including the current trial of the former Serbian leader, Slobodan Milosevic. Though it has proven effective in securing convictions, the strategy requires a complex web of circumstantial evidence and often the testimony of hundreds of witnesses. This is one reason many trials at The Hague tribunal drag on for years.

Prosecuting leaders and commanders for crimes they may not have known about (but failed to prevent or punish) largely satisfies justice in The Hague. In part, this is because war crimes courts since Nuremberg have held that leaders who make policy and issue orders hold greater responsibility than subordinates who carry out those plans.

However, this approach is sometimes at odds with the needs of victims, according to Eric Stover, director of the Human Rights Center at University of California at Berkeley. As part of a multi-year study, Stover interviewed nearly 100 victims who testified at The Hague. Whether Serbs, Croats and Muslimsthe feelings they expressed were strikingly similar.

Stover says these victims expressed a desire for a more personal kind of justice: "'I want to sit in the same room as those people who did this within our village and I want to ask them why did you do this. We had such a good life before.' And for many of them, it's that quest, it's trying to understand how their villages could be destroyed so quickly. And that is far more important than the more abstract notions of achieving justice and getting the bigger fish."

Judgment for Ahmici

In early 2000, the court began issuing the first judgments against Bosnian Croats for Ahmici and other attacks.

The court convicted Tihomir Blaksic of murder, forced deportation and other crimes against humanity because he knew about the crimes but ignored his obligation to investigate. The court sentenced Blaksic to 45 years in prison.

As for the Kupreskic brothers, the tribunal ruled there was not enough evidence for a murder conviction but it did sentence them to ten years in prison for essentially aiding and abetting the attack.

But late last year, an ICTY appeals chamber overturned the conviction in part due to a lack of credible testimony. The brothers were released. And they were not alone: Of the 11 Bosnian Croats originally accused of directly participating in the attack on Ahmici, eight were either released or had indictments withdrawn.

"It was very depressing," recalls Albert Moskowitz, who has returned to the Justice Department. "I spent so much time bringing witnesses in and persuading them to come and testify and only to have the convictions reversed, I felt very bad for the community and victims who had come forward."

Tihomir Blaksic and Dario Kordic, a Bosnian Croat politician sentenced to 25 years, appealed the convictions. Lawyers for Blaksic say newly discovered documents from Bosnian Croat archives show that the former commander tried to punish subordinates for attacks on civilians, but was blocked by superior officers and politicians.

A Divided Community

This year there were two ceremonies for Ahmici on April 16, the anniversary of the massacre.

At the area's main mosque, thousands of Muslims gathered for early morning prayers for the massacre victims. They then climbed up a grassy knoll to the cemetery where the victims were buried nine years ago by British peacekeepers. There the crowd listened to a man reading the names of Ahmici's dead.

On the same day and just across the main road from Ahmici, local Croats staged their own commemoration at the foot of a huge neon cross. They prayed not for the Muslims killed at Ahmici, but for Croats killed in the civil war. It was a provocative act and meant to be.

The ceremonies showed that bitter divisions between Muslims and Croats persist in and around Ahmici. Neither side talks about hopes for reconciliation in this generation. This is the exact opposite outcome to that intended by the war crimes tribunal. Its central mission is to focus blame on individuals most responsible, not along ethnic or national lines. And yet for many villagers, the trials were a failure.

Sakib Ahmic says the jailing of commanders gave little comfort. He wanted the actual killers sent to jail. The outcome of the trials hardened Sakib's hatred of Croats.

"In my opinion they're all guilty because not one Croat helped protect Muslims here," says Ahmic. "Had they helped save even one Muslim life I would say, okay, here is some humanity."

Sakib's daughter Suhreta, whose husband was killed in the massacre, is outraged that the tribunal released the Kupreskic brothers without telling survivors why.

"No one from The Hague and no one from government came here," she says. "It's as if dogs were killed and not people. I'm speechless as to why no one came had the sense to come and explain why they were released. How is it that war criminals can be released."

A third Muslim from Ahmici, a café owner named Mehmet, says the tribunal failed everyone, Muslims and Croats.

"Four years after our return here, we still don't know the truth," says Mehmet. "My relative thinks his neighbor killed his father. This neighbor, knowing that he is suspected, is afraid and doesn't sleep at night. That's what we have here. It's not justice, but a balance of fear."

Zoran and Mirjan Kupreskic, the former defendants, are unemployed and living off charity with their families in rented apartments two miles from Ahmici. They have publicly discouraged Croats from seeking revenge on Muslims. But the brothers want another kind of retribution. They're suing the tribunal for wrongful imprisonment. Zoran says The Hague tribunal produced nothing but injustice for Croats.

"The problem is that because the court prosecuted innocent people like us and others, it has completely lost the confidence of Croats," says Kupreskic. "Everyone knows we were prosecuted as Croats, not criminals. In the end, they chose the people they could get. Not those who were guilty."

There are no obvious signs of hostility in Ahmici as Croats and Muslims continue to rebuild. But there's little effort at reconciliation, either.

Eric Stover of U.C. Berkeley says Ahmici is not an isolated case in the Balkans.

"It's clear from our studies throughout the former Yugoslavia that war crimes trials, at least in the short run, tend to further divide communities," he says. "The fact that there are so many people who planned and carried out the war crimes in the former Yugoslavia means that in towns today there are still war criminals walking around and everyone knows who they are…and so you set up a dynamic where there won't be any reconciliation until there are further trials that deal with the smaller fish."

Graham Blewitt, the ICTY deputy prosecutor, says the tribunal probably erred by indicting so many lower level suspects. But Blewitt says the Kupreskic case was undermined by efforts to intimidate Muslim witnesses. "The drop out rate of witnesses was significant," he says.

Blewitt says he is surprised to hear that the prosecutors never explained the Kupreskic verdict to Muslim witnesses living in Ahmici.

"It's important that these people understand the process. That's why the tribunal puts so much effort in its outreach program. If we don't explain a result like the Kupreskic case, then we're failing in our duty toward these victims."

Albert Moskowitz, who prosecuted the Kupreskic brothers, says it would be impossible for any court to heal all the wounds of war. But he says The Hague tribunal was successful in Ahmici, because it jailed the leaders.

"Any reasonable person looking from afar would say that this is a good measure of justice for as to what happened in those villages, including Ahmici," says Moskowitz. "But if you're a villager in Ahmici trying to rebuild your life and all you know is that your husband and your brother and your mother have been murdered by people who are still walking around claiming that this was a defensive operationthat's cold comfort."

There will be no more Ahmici-style prosecutions at the UN Tribunal. Instead, future prosecutions will almost always focus solely on high-level officials. The tribunal says it must concentrate on getting the leaders of the wars in former Yugoslavia if it is to complete work on schedule within seven years. Tribunal officials would like to hand off cases against lower level war criminals to Bosnia's supreme court. But they say it may take years before that court reaches international standards for fairness and independence.

Gary Bass, an expert in international justice at Princeton University, says the kind of justice offered in The Hague will be largely symbolic, punishing the few for the crimes of the many.

"In domestic society we think that any person who commits a crime deserves to be punished. And when you're dealing with war crimes you're never going to be able to have that kind of perfect accountability. So you're left with this sort of symbolic nature. I don't think we should kid ourselves that you can say oh look we've set up a war crimes tribunal in The Hague. We've dealt with it, we've solved it."